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MEMBER DIARY

The First Monday In October

With much of the interest focused on the Presidential race this year, next Monday is October 1st- the first Monday in October- the traditional beginning of the 2012-2013 Supreme Court term. Some interesting cases will be heard this month. This article will try to summarize some of the more interesting cases being heard in October. In addition, yesterday the Supreme Court convened in what is known as “the long conference.” Probably the most interesting cases being considered during that conference involve DOMA and the gay marriage issue which, most likely, will end up squarely before the Court this term. It would very surprising if they deny any of the many appeals.

First, to the cases we do know they will hear this month. The first is actually a re-argument held over from the previous term, the Kiobel case. Although complicated, it boils down to a law our First Congress passed in 1789, the Alien Torts Statute. Under this old law, foreign nationals may sue in federal courts for torts that violate either international law, or for violations of a treaty the US has signed. In this case, Kiobel’s family was forcibly removed from their land and tortured by the dictatorial government of Nigeria at the time. This forced removal was in order to allow Shell Oil to explore and drill for oil. Thus, Kiobel now sues Shell Oil. The law was seldom used for 200 years, but has been resorted to of late. The questions are whether the federal courts in the United States can be used to sue for damages for human rights violations that occurred totally on foreign soil. If so, then the Court must decide whether corporations can be sued. The obvious ramifications on international law are obvious. To this writer, it would appear that if Kiobel prevails, then the US courts could be inundated with such lawsuits by foreign nationals alleging human rights violations in foreign countries. Isn’t that what the International Court of Justice is for?

On the 29th of October, the Court will hear another case regarding international human rights. In Clapper v. Amnesty International, the Court will be asked whether lower courts can grant prospective relief from certain laws. Amnesty International claims that court-authorized surveillance could intercept their communications with foreigners reporting human rights abuses in their country. For example, they claim that because of the possibility of their phone calls or e-mails being intercepted, they have had to change their means of communicating with these foreigners by traveling to their country, or that these foreign “informants” have simply stopped talking over fear their communications will be intercepted. The main question here is that there are absolutely no instances of the government ACTUALLY doing this or even intercepting any Amnesty International communications whatsoever.

There are two cases which affect deportation proceedings. The first- Moncrieffe v. Holder- asks whether the violation of a state law for marijuana possession and/or distribution rises to the level of an aggravated felony and therefore, the person could be deported. In the second case- Chaidez v. United States- the Court must determine whether a violation of the 6th Amendment’s right to effective counsel can affect a deportation order. In this particular case, the counsel in question failed to inform the defendant that a guilty plea as part of a agreement could result in their deportation.

On the 31st, the Court will hear a pair of cases from Florida involving drug detection trained dogs. The first asks whether a “sniff” at the door of a suspected grow house rises to the level of a “search” and requires a warrant. The second involves the use of such dogs in traffic stops when there is no probable cause to believe the car has drugs. Most likely, the court will rule in favor of Florida as there has been a slow erosion of the search warrant requirements, especially in what they call “exigent circumstances.” However, last term they did rule that a search warrant is required to place a GPS tracking device on a vehicle. And speaking of search warrants, in Bailey v. United States, the police had a search warrant. However, the occupants of the home were observed leaving before the warrant was executed. They followed the subjects and stopped them on a traffic offense, determined they were the occupants of the home in question, and returned them to the home. The search discovered, in plain view, narcotics and firearms. Essentially, the Court is asked whether they could detain the subject of a search warrant away from the premises being searched.

On October 9th, the Court will be considering capital prisoners and their right to counsel. Specifically, defendants are supposed to assist counsel in their defense and appeals. But, what if a court rules they are incompetent to assist their lawyers? Do they have a right to competence before the habeas appeal can proceed? And if that is the case, can a court indefinitely stay an execution if the defendant is considered incompetent until such time they decide otherwise? Basically, this is a common technique used by capital prisoners to delay executions. The “right to competence” argument has come before the Court previously, but those cases have created more confusion than anything.

There are two cases that will likely only interest legal minds. The first, Kloeckner v. Solis, is strictly a court jurisdiction case while Johnson v. Williams is a habeas case. It would seem strange in this day and age that the Court is still deciding cases regarding “navigable waters of the United States.” But, one case- Lozman v. City of Riviera Beach- asks whether boats permanently moored in waters that are clearly navigable can be taxed by local authorities. More specifically, the Court must decide whether these more or less permanently moored boats are “vessels” and under federal maritime jurisdiction, not state jurisdiction.

A couple of David versus Goliath cases will be heard in October. The first is United States v. Bormes. Here, a lawyer paid a $350 filing fee for a client using his own credit card in an on-line transaction. However, the card was expired and the government returned the fee clearly showing the expiration date in the transaction which is in violation of federal law under the Fair Credit Reporting Act. Bormes sued, won in the lower courts, but lost on appeal with that court determining that the federal government was afforded sovereign immunity. In the second case- Kirtsaeng v. John Wiley & Sons- a college student decided to earn some income for college expenses by selling text books. Wiley is a publisher of such books and, like other textbook publishers, often sell them at a discount overseas. Kirtsaeng’s parents in Thailand would purchase these books, send them to the US and he would then sell them here. In all, he charged about $37,000. Under the “first sale” doctrine, people are permitted to resell such books legally purchased without running afoul of copyright law. However, the lower courts sided with the publisher and awarded Wiley & Sons $75,000 in danages FOR EACH BOOK SOLD- slightly over $600,000. Like so many things seemingly trivial, the so-called “gray market” Internet sales grapevine is a multi-million dollar annual venture. Hence, what starts out as a $37,000 David has serious consequences for Internet commerce, which is why companies like E-Bay, Costco and Goodwill have sided with Kirtsaeng.

The two biggest cases involve the Takings Clause and affirmative action. In the Takings Clause case, a flood alleviation project by the Army Corps of Engineers upstream on a river caused an Arkansas Wildlife Management Area became heavily flooded. Besides preserving nature, the area was also used for hunting, fishing, trapping and, most importantly, timber harvesting. The state of Arkansas sued the federal government under the Takings Clause claiming they lost not only use of the land, but income from timber harvesting, without just compensation. The lower courts have ruled against the State claiming that the loss is not “permanent.” Making the matter worse is the fact that subsequent documents basically admit that the Corps of Engineers screwed up and ignored warnings from Arkansas and some of their own hydrological reports. Unfortunately for Arkansas, they do not have precedent on their side.

The biggest case to be heard in October, perhaps in the entire term, is Fisher v. University of Texas-Austin. This case will test the boundaries of affirmative action in college admission procedures. Under the law at the time, the top 10% students in any high school received automatic admission into the state’s college system. After that, they would basically use a lottery system to accept students, but gave preference to minority students to increase the diversity of their student body. Fisher applied and was denied admission. At first, the University moved to have the case dismissed as moot. However, over a $35 non-refundable filing fee, the case remains open…because of $35. Fisher has since received a degree from LSU, but continues the suit.

In the past, the Court has determined that race can be considered in college admissions, but that it cannot be the sole determinant- it should be one of many. Instead, in this case race seems to be the sole determinant. In fact, the whole history of the policy is predicated upon the racial and ethnic diversification of the student body. It is no secret among Court watchers that John Roberts and the conservative wing of the Court has an aversion to affirmative action programs that amount to de facto quotas or minority set-asides. The key vote here will be that of Anthony Kennedy. If he sides with the conservatives, one would expect him to get the opinion to help heal the rift between Roberts and Kennedy over the Obamacare decision despite the fact this is a pet peeve of Roberts. If Kennedy breaks with the conservatives, then either he or Elena Kagan will likely get the opinion since she has experience in academia having been Dean of Harvard Law School. This could be one of the biggest decisions of the term with any gay marriage case competing with it for top honors.